Nataliya Golubovich v Alexey Golubovich
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwin Johnson |
| Judgment Date | 22 June 2022 |
| Neutral Citation | [2022] EWHC 1605 (Ch) |
| Docket Number | Appeal Reference: CH-2021-000188 |
| Court | Chancery Division |
and
[2022] EWHC 1605 (Ch)
THE HONOURABLE Mr Justice Edwin Johnson
Appeal Reference: CH-2021-000188
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
On appeal from the order of Deputy Master Marsh dated 5th August 2021 ([2021] EWHC 2099 (Ch) Case No. BL-2020-000671)
Rolls Building
7 Rolls Buildings
Fetter Lane
London, EC4A 1NL
Laurence Emmett QC and Thomas Pausey (instructed by Enyo Law LLP) for the Appellant/Part 20 Defendant
Rupert D'Cruz QC and Douglas James (instructed by Withers LLP) for the Respondent/Defendant/Part 20 Claimant
Hearing date: 13 th May 2022
APPROVED JUDGMENT
This judgment will be handed down by the judge remotely, by circulation to the parties' representatives by email and to the National Archives. The date and time for hand-down will be deemed to be 10.30 am on 22 nd June 2022.
Introduction
This is my reserved judgment on the hearing of an application, made by Olga Mirimskaya, for permission to appeal against an order of Deputy Master (formerly Chief Master) Marsh dated 5 th August 2021. By that order the Deputy Master dismissed the application of Ms Mirimskaya disputing the jurisdiction of the court and seeking to set aside the relevant part of an earlier order of Deputy Master Lloyd, dated 21 st July 2020. By that earlier order Deputy Master Lloyd granted permission to Alexey Golubovich to serve on Ms Mirimskaya, out of the jurisdiction, an additional claim in these proceedings.
The Deputy Master made his order of 5 th August 2021 (“the Marsh Order”) pursuant to his judgment on the application, which he handed down on 30 th July 2021. In that judgment (“the Marsh Judgment”) the Deputy Master explained his reasons for dismissing the application challenging jurisdiction. By a separate judgment handed down on 5 th August 2021 (“the Consequential Judgment”) the Deputy Master dealt with matters consequential upon his decision in the Marsh Judgment.
It is convenient to refer to the parties to these proceedings, in this judgment, by their given names. It will be understood that I intend no disrespect by this form of reference. I shall refer to the Claimant in these proceedings, Nataliya Golubovich, as Nataliya. I shall refer to the Defendant/Part 20 Claimant in these proceedings, Alexey Golubovich, as Alexey. I shall refer to the Part 20 Defendant (subject to her outstanding challenge to jurisdiction) in these proceedings, Olga Mirimskaya, as Olga.
The original application challenging jurisdiction (“the Jurisdiction Application”) was made by Olga, by application notice dated 6 th November 2020. Alexey was the respondent to the Jurisdiction Application. It is Olga who is the appellant in the appeal, against the dismissal of the Jurisdiction Application, for which permission is sought. It is Alexey who is the respondent to the application for permission to appeal. Nataliya was not involved in the hearing of the Jurisdiction Application and is not involved in the application for permission to appeal.
Permission to appeal was refused by the Deputy Master, for the reasons set out in the Consequential Judgment. The renewed application for permission to appeal (“the PTA Application”) came before me, in the usual way, on a paper application. I decided that the PTA Application would benefit from further submissions from both parties and, in the result, I made an order on 10 th November 2021 of the kind which is sometimes referred to as a rolled-up order. My order provided for the PTA Application to be listed for a hearing, with the hearing of the appeal (subject to the question of permission) to follow.
At this hearing Olga has been represented by Laurence Emmett QC and Thomas Pausey. Alexey has been represented by Rupert D'Cruz QC (assisted by Douglas James in relation to the preparation of Alexey's skeleton argument for this hearing). I am most grateful to all counsel for their helpful submissions.
As is often the case in hearings of this kind, I heard all the arguments relevant to both the PTA Application and (subject to the question of permission) the substantive appeal. It is convenient, in this judgment, to deal with all the arguments before coming to my decision on the PTA Application and, subject to that decision, to the question of what is to happen in relation to the substantive appeal. For ease of reference I will refer to the substantive appeal as “the Appeal”, but the use of this form of reference is of course subject to the question of permission.
The bundle of documents which was prepared for this hearing was substantial, running to 673 pages. I was also provided with a bundle of authorities, which ran to 40 items, and to which extensive reference was made in the course of the written and oral submissions. I mention this not by way of criticism, but rather to record that it has neither been possible nor necessary to make reference, in this judgment, to all of the material to which I was taken in the submissions. It has all been taken into account, whether or not the subject of express reference in this judgment.
The parties
Alexey and Olga are Russian citizens. They were married in 1985 in Moscow, separated in 2009, and were divorced in 2012, upon an order of the Presnenskiy District Court in Moscow. Nataliya is their daughter. She is also a Russian citizen.
When in England, Nataliya resides at 28 Upper Mall, Hammersmith, London W6 9TA (“the Property”). The Property was originally purchased in 2004 as the family home. In 2017 the legal title to the Property was transferred to Nataliya.
The dispute which is the subject of these proceedings relates to the ownership of a valuable collection of artworks and antiques which, putting it neutrally, were accumulated during Alexey's and Olga's marriage, prior to their separation in 2009. I will use the expression “the Collection” to refer generally to the entirety of this collection. As will become apparent, it is necessary to use a bewildering variety of definitions to refer to different parts of the Collection.
The English Proceedings
Nataliya commenced these proceedings (“the English Proceedings”) in April 2020. In her Particulars of Claim Nataliya alleges that between 2012 and 2016 Alexey systematically removed a substantial part of the Collection from the Property. The alleged missing items (“the Missing Items”) are set out in an Appendix A to the Particulars of Claim. Nataliya claims that the Collection was legally and beneficially owned by Olga. As such, Nataliya alleges that the removal of the Missing Items from the Property constituted an unlawful interference with Olga's rights of ownership.
Nataliya's title to the Missing Items and to the right to sue in respect of their alleged unlawful removal by Alexey is said to derive from a Deed of Gift executed between Olga and Nataliya on 30 th September 2019 (“the Deed of Gift”). By the Deed of Gift Olga gifted to Nataliya all her legal and beneficial interest in the Missing Items. On the basis of the Deed of Gift, Nataliya claims now to be the sole legal and beneficial owner of the Missing Items. Nataliya claims an order for the delivery up of the Missing Items and damages on the basis that Alexey has unlawfully interfered with and/or converted the Missing Items.
The Particulars of Claim anticipated part of Alexey's case in response to these claims, by making reference to a document entitled Deed of Settlement which is dated 27 th September 2013 (“the Deed of Settlement”). The Deed of Settlement purports to have been made between Alexey and Olga and purports to provide for the transfer of artworks and antiques to Alexey by Olga, and for the transfer of jewellery to Olga by Alexey. Paragraph 17 of the Particulars of Claim summarises the principal terms of the Deed of Settlement. Paragraphs 18 and 19 of the Particulars of Claim then contend as follows (italics have been added to all quotations in this judgment):
“18. In fact, the Deed of Settlement is a forgery. Olga has confirmed that she did not sign it and that she had never seen it before or soon after its production on 9 June 2016.
19. As a result, the Deed of Settlement was ineffective to transfer the various artworks and antiques described in the appendices from Olga to Mr Golubovich.”
Alexey did not dispute jurisdiction in the English Proceedings, and has served a Defence and Counterclaim. In the Defence and Counterclaim Alexey claims to have funded the acquisition of the Collection himself, and claims sole or part ownership of the Collection on the following four bases:
(1) Alexey claims ownership of the Collection pursuant to the Deed of Settlement, which he says is not a forgery, and effected a valid transfer of the artworks and antiques which were expressed to be the subject of a transfer by Olga.
(2) Alexey claims equal ownership of the Collection with Olga pursuant to certain provisions of Russian matrimonial law.
(3) Alexey claims equal ownership of the Collection with Olga pursuant to a common intention constructive trust.
(4) Alexey claims sole ownership of the Collection pursuant to a purchase money resulting trust.
On this basis Alexey claims that the Deed of Gift had no legal effect, because Olga had no title to the Collection or because, as a matter of Russian matrimonial law, Olga could not make a transfer of part owned matrimonial property without the consent of Alexey. Alternatively, and if the alleged constructive trust governs the position, Alexey claims that Olga had the ability, at most, to make a transfer by the Deed of Gift of a 50% beneficial interest in the Missing Items to Nataliya.
By the Counterclaim Alexey seeks the following declaratory relief:
(1) A...
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